criminal law Lecture Notes

Involuntary Manslaughter - Unlawful Act

Introduction

Involuntary manslaughter is the term given to an unlawful killing where the
necessary mens rea for murder is not present - the defendant will not have had
any intention to kill or do g.b.h. In fact, the defendant will probably not have
contemplated the death of the victim at all. There are three broad categories of
involuntary manslaughter:

Manslaughter by an unlawful and dangerous act (also known as constructive
manslaughter),

Manslaughter by gross negligence, and

Manslaughter with
subjective recklessness as to the risk of death or bodily harm.

As with voluntary manslaughter, if a defendant is convicted of involuntary
manslaughter the sentence is at the discretion of the trial judge and can range
between life imprisonment and an unconditional discharge.

UNLAWFUL ACT MANSLAUGHTER

INTRODUCTION

This type of manslaughter is committed when the defendant has caused the
death of a person by an unlawful and dangerous act. The Court of Appeal in R v
Mitchell [1983] 2 WLR 938 (below) said that to establish this type of manslaughter it
had to be shown:

1. that the accused had committed an unlawful act;
2. that the act was
dangerous in the sense that a sober and reasonable person would inevitably
recognise that it carried some risk of harm;
3. that the act was a substantial
cause of death; and
4. that the accused intended to commit the act as distinct
from intending its consequence.

1. AN UNLAWFUL ACT

Since the decision in R v Franklin (1883) 15 Cox CC 163, unlawful act
manslaughter must be based on a criminal act. Therefore, if the prosecution
cannot establish a criminal act on the part of the defendant, the defendant will
not be liable for unlawful act manslaughter. Compare:

R v Lamb [1967] 2 QB 981R v Arobieke [1988] Crim LR 314.

The consent of the victim will not prevent an act from being unlawful. See:

R v Cato [1976] 1 WLR 110.

2. THE ACT MUST BE DANGEROUS

The act must be dangerous in the sense that the average person would
recognise that it could cause some form of physical harm to another person. See:

R v Church [1966] 1 QB 59.

What type of harm has to be reasonably foreseeable?

The jury must be directed to consider the possibility of physical harm as
opposed to merely emotional harm. See:

R v Dawson (1985) 81 Cr App R 150.

How much knowledge of the circumstances does one attribute to the bystander?

* In R v Watson [1989] 1 WLR 684, it was held that the sober and
reasonable" bystander was to be endowed with whatever knowledge the
defendant possessed.

* In R v Ball [1989] Crim LR 730, however, it was emphasised that the sober
and reasonable bystander could not be endowed with any mistaken belief held by
the defendant.

3. SUBSTANTIAL CAUSE OF DEATH

The unlawful and dangerous act must be a substantial cause of death.

Must the act be directed at the victim?

It had been suggested that because the unlawful act must expose the victim to
the risk of some bodily harm, it must be aimed at that victim. See:

R v Dalby [1982] 1 WLR 425.

This seemed to introduce an extra element of mens rea into the offence by
requiring the defendant to 'direct' his action against the victim. The
significance of Dalby has been greatly reduced however, by the two following
cases. The issue is now one of causation. See:

4. MENS REA

The mens rea for unlawful act manslaughter consists of mens rea as to the
unlawful act itself (ie, intention or recklessness depending on what the
necessary mens rea is for the act). The defendant need not realise the risk of
causing some harm. As long as the reasonable man in his position would have so
realised, this is sufficient mens rea. The House of Lords reaffirmed this point
in:

DPP v Newbury and Jones [1976] AC 500.

If there is no mens rea for the unlawful act the defendant will not be
liable; see R v Lamb (above).